When men are victims: Applying rape shield laws to male same-sex rape

New York University Law Review

Volumn 73, Issue 1, 1998, Pages 293-330

  Kramer, Elizabeth J ^a  

^a NONE

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EID: 0032389645     PISSN: 00287881     EISSN: None     Source Type: Journal    
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References (226)

1. Nkiru Asika, Male Rape Victims Hide in Shame, Times-Picayune, June 15, 1997, at A27.
2. See id.
3. See id.
4. See Carolyn Starks, Moms Unite After Sons Were Raped in Prison, Chi. Trib., Feb. 10, 1997, § 2, at 1.
5. See Fred Pelka, Raped: A Male Survivor Breaks His Silence, in Rape and Society: Readings on the Problem of Sexual Assault 250, 250-51 (Patricia Searles & Ronald J. Berger eds., 1995).
6. See id. at 252-53 (noting disbelief and scorn of police officers to whom victim reported his assault); Asika, supra note 1 (stating that "Lane . . . was too ashamed" and "Dooley . . . was too wracked with guilt" for either of them to press charges, and noting that both Lane's and Dooley's parents blamed their sons for their assaults); Cheryl Corley, Illinois Prisoner Who Contracted AIDS Sues State, on Morning Edition (National Public Radio broadcast, Aug. 26, 1997), available in LEXIS, News library, Curnews file (noting that Blucker "kept quiet about the abuse for six months because gang members threatened his life").
7. This Note will use the term "same-sex rape" instead of "homosexual rape. " Neither the victims nor the perpetrators of male same-sex rape are necessarily homosexual. See A. Nicholas Groth & Ann Wolbert Burgess, Male Rape: Offenders and Victims, 137 Am. J. Psychiatry 806, 807 (1980) (finding that only two of 16 men who admitted sexually assaulting other men limited their consensual sexual encounters to men, and only two of six victims of male same-sex rape considered themselves homosexual or bisexual). The term "homosexual rape" suggests inaccurately that one or both parties in a male-male rape are gay, while the term "same-sex rape" avoids this inaccuracy. I am indebted to Ms. Bea Hanson, M.S.W., of the New York City Gay and Lesbian Anti-Violence Project for identifying the proper terminology. See also Stephen Donaldson, The Rape Crisis Behind Bars, N.Y. Times, Dec. 29, 1993, at A11 (stating that "the phrase 'homosexual rape' is extremely misleading" because both victims and perpetrators of male same-sex rape are usually heterosexual).
8. This Note will use the term "same-sex rape" instead of "homosexual rape. " Neither the victims nor the perpetrators of male same-sex rape are necessarily homosexual. See A. Nicholas Groth & Ann Wolbert Burgess, Male Rape: Offenders and Victims, 137 Am. J. Psychiatry 806, 807 (1980) (finding that only two of 16 men who admitted sexually assaulting other men limited their consensual sexual encounters to men, and only two of six victims of male same-sex rape considered themselves homosexual or bisexual). The term "homosexual rape" suggests inaccurately that one or both parties in a male-male rape are gay, while the term "same-sex rape" avoids this inaccuracy. I am indebted to Ms. Bea Hanson, M.S.W., of the New York City Gay and Lesbian Anti-Violence Project for identifying the proper terminology. See also Stephen Donaldson, The Rape Crisis Behind Bars, N.Y. Times, Dec. 29, 1993, at A11 (stating that "the phrase 'homosexual rape' is extremely misleading" because both victims and perpetrators of male same-sex rape are usually heterosexual).
9. Shacara Boone, Note, New Jersey Rape Shield Legislation: From Past To Present - The Pros And Cons, 17 Women's Rights L. Rep. 223, 224 n.11 (1996).
10. David Ellis, Comment, Toward a Consistent Recognition of the Forbidden Inference: The Illinois Rape Shield Statute, 83 J. Crim. L. & Criminology 395, 396 n.9 (1992).
11. Clifford S. Fishman, Consent, Credibility, and the Constitution: Evidence Relating to a Sex Offense Complainant's Past Sexual Behavior, 44 Cath. U. L. Rev. 709, 713 n.10 (1995).
12. Beverly J. Ross, Does Diversity in Legal Scholarship Make a Difference?: A Look at the Law of Rape, 100 Dick. L. Rev. 795, 802 n.22 (1996).
13. See, e.g., Arthur Kaufman et al., Male Rape Victims: Noninstitutionalized Assault, 137 Am. J. Psychiatry 221, 221 (1980) (arguing that "[s]exual assault against men is much neglected"); Panel Discussion, Men, Women and Rape, 63 Fordham L. Rev. 125, 127 (1994) (noting that male same-sex rape is "unjustifiably downplayed").
14. See, e.g., Arthur Kaufman et al., Male Rape Victims: Noninstitutionalized Assault, 137 Am. J. Psychiatry 221, 221 (1980) (arguing that "[s]exual assault against men is much neglected"); Panel Discussion, Men, Women and Rape, 63 Fordham L. Rev. 125, 127 (1994) (noting that male same-sex rape is "unjustifiably downplayed").
15. Most counselors prefer the term "survivor," as it focuses on the strength of the person who has lived through a sexual assault, rather than his powerlessness during the assault itself. See, e.g., Michael Scarce, Male on Male Rape: The Hidden Toll of Stigma and Shame 8 (1997) ("Victimization implies powerlessness and a lack of control, whereas survivor carries a measure of strength, perseverance, and empowerment."). This Note uses the term "victim" only because it is the term typically used by courts and commentators.
16. See Bureau of Justice Statistics, U.S. Dep't of Justice, Sourcebook of Criminal Justice Statistics 1995, at 232 tbl.3.3 (1995). The statistics do not indicate how many of these men were sexually assaulted by men rather than women.
17. See, e.g., Stephen Donaldson, Can We Put an End to Inmate Rape?, USA Today: Mag. of Am. Scene, May 1995, at 40 (noting that "[v]ery few [prison rapes] ever are reported to administrators, much less prosecuted"); Courtenay Edelhart, Male Survivors Also Deal With Myths, Chi. Trib., June 1, 1995, § 2, at 4 ("Experts say the statistics [on the prevalence of male rape] are conservative because they believe a majority of attacks go unreported and prisoners weren't included.").
18. See, e.g., Stephen Donaldson, Can We Put an End to Inmate Rape?, USA Today: Mag. of Am. Scene, May 1995, at 40 (noting that "[v]ery few [prison rapes] ever are reported to administrators, much less prosecuted"); Courtenay Edelhart, Male Survivors Also Deal With Myths, Chi. Trib., June 1, 1995, § 2, at 4 ("Experts say the statistics [on the prevalence of male rape] are conservative because they believe a majority of attacks go unreported and prisoners weren't included.").
19. See Asika, supra note 1.
20. See Donaldson, supra note 7; see also Donaldson, supra note 15 (citing data suggesting that over 300,000 men per year are sexually assaulted in prison).
21. See Bureau of Justice Statistics, supra note 14, at 232. As most rapes of women go unreported, this figure (162,640) probably represents only a fraction of the actual number of rapes of women that occur every year. See, e.g., Steve Pokin, Tracking Incidence of Male Rape Difficult, The Press-Enterprise (Riverside, Calif.), Sept. 10, 1995, at D3, available in LEXIS, News Library, Arcnews File (stating that "[i]t's estimated that one in 10 women who are raped contact police" and that all rape is underreported).
22. See, e.g., Susan Estrich, Rape, 95 Yale L.J. 1087, 1089 n.1 (1986) ("The apparent invisibility of the problem of male rape . . . may well reflect the intensity of the stigma attached to the crime and the homophobic reactions against its gay victims. . . . [T]he situation facing male rape victims today is not so different from that which faced female victims . . . two centuries ago.").
23. See infra Part I.A.1.
24. This Note uses the term "female opposite-sex rape" to refer to the rape of women by men, the situation that many think of as a "typical" rape. The term is used for clarity of comparison with male same-sex rape.
25. See infra Part I.A.1 (describing history of rape shield laws).
26. See infra notes 30-33 and accompanying text.
27. See infra note 34 and accompanying text.
28. See infra notes 85-87 and accompanying text.
29. See, e.g., Alaska Stat. § 12.45.045(b) (1996); Colo. Rev. Stat. § 18-3-407(1)(a)-(b) (1996); Mass. Gen. Laws Ann. ch. 233, § 21B (West 1986); Mich. Comp. Laws Ann. § 750.520j (West 1991).
30. See infra note 57 and accompanying text.
31. See Telephone Interview with Bea Hanson, Director, New York City Gay and Lesbian Anti-Violence Project (Sept. 19, 1996).
32. Estrich, supra note 19, at 1094-95 (quoting 1 M. Hale, The History of the Pleas of the Crown 634 (1778)).
33. See Sakthi Murthy, Note, Rejecting Unreasonable Sexual Expectations: Limits on Using a Rape Victim's Sexual History to Show the Defendant's Mistaken Belief in Consent, 79 Cal. L. Rev. 541, 546 (1991) (noting common argument that "rape's uniqueness" is basis for treating rape differently than other crimes). The notion that rape is different than all other crimes has been widely criticized, notably by Professor Susan Estrich. Professor Estrich challenges the notion that rape is "different" due to the possibility of consent by arguing that nonconsent is an element of many crimes, such as robbery (robbery with consent is charity) and trespass (trespass with consent is visiting). See Estrich, supra note 19, at 1126. Victims of these crimes, however, are not treated with the same contempt and skepticism as rape victims. See id. at 1126 n.122.
34. For example, some states required that complaints of rape be corroborated by witnesses other than the victim. See generally Note, Corroborating Charges of Rape, 67 Colum. L. Rev. 1137 (1967) (discussing New York's one-time requirement that charges of rape be corroborated by evidence in addition to complainant's testimony). Such requirements made proving rape nearly impossible, as sexual attacks rarely happen in public places where others might observe the assault. Reformers, however, helped end such requirements. See Harriett R. Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade, 70 Minn. L. Rev. 763, 769-70 (1986) (stating that "reformers . . . dispensed with the requirement that the complainant's testimony be corroborated").
35. For example, some states required that complaints of rape be corroborated by witnesses other than the victim. See generally Note, Corroborating Charges of Rape, 67 Colum. L. Rev. 1137 (1967) (discussing New York's one-time requirement that charges of rape be corroborated by evidence in addition to complainant's testimony). Such requirements made proving rape nearly impossible, as sexual attacks rarely happen in public places where others might observe the assault. Reformers, however, helped end such requirements. See Harriett R. Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade, 70 Minn. L. Rev. 763, 769-70 (1986) (stating that "reformers . . . dispensed with the requirement that the complainant's testimony be corroborated").
36. See Estrich, supra note 19, at 1127-30 (discussing claim that woman's resistance may be interpreted as ambivalence or even enjoyment of defendant's sexual advances).
37. See Euphemia B. Warren, She's Gotta Have It Now: A Qualified Rape Crisis Counselor-Victim Privilege, 17 Cardozo L. Rev. 141, 144 (1995) ("Myths and stereotypes . . . led rape to be one of the least reported crimes in the United States.").
38. See Fishman, supra note 10, at 716 (describing how evidentiary use of prior sexual history discouraged victims from coming forward to testify); Galvin, supra note 31, at 764 ("'Too often in this country victims of rape are humiliated . . . when they report and prosecute the rape.'" (quoting 124 Cong. Rec. 34,913 (1978) (statement of Rep. Holtzman))).
39. See, e.g., Ronet Bachman & Raymond Paternoster, A Contemporary Look at the Effects of Rape Law Reform: How Far Have We Really Come?, 84 J. Crim. L. & Criminology 554, 554 (1993) ("The reform of state and federal rape statutes has been the product of a fragile alliance among feminist groups, victim's rights groups, and organizations promoting more general 'law and order' themes.").
40. See Galvin, supra note 31, at 767. For an influential discussion of the history of rape published during the time that traditional rape law began to be questioned, see generally Susan Brownmiller, Against Our Will (1975).
41. See supra note 26.
42. The manner in which these statutes limit evidence about a victim's prior sexual history varies considerably. See, e.g., Alaska Stat. § 12.45.045(b) (1996) (stating that evidence of sexual assault victim's prior sexual history "occurring more than one year before the date of the offense charged is presumed to be inadmissible"); Colo. Rev. Stat. § 18-3-407(1)(a)-(b) (1996) (providing that evidence of victim's prior or subsequent sexual history shall be presumed irrelevant, except "[e]vidence of the victim's prior or subsequent sexual conduct with the actor" or "[e]vidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease . . . offered for the purpose of showing that the act or acts charged were or were not committed by the defendant"). Under Michigan law, evidence of the victim's prior sexual history will not be admitted unless the judge finds that the following proposed evidence [is] material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value: (a) Evidence of the victim's past sexual conduct with the actor. (b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease. Mich. Comp. Laws Ann. § 750.520j (West 1991).
43. See Galvin, supra note 31, at 765 n.3 (noting that Michigan passed nation's first Rape Shield Statute in 1974 and citing Act of Aug. 12, 1974, 1974 Mich. Pub. Acts 1025, 1028-29 (codified as amended at Mich. Comp. Laws Ann. § 750-520j (West 1991))).
44. See, e.g., supra note 38. For the purposes of this Note, the basic policy considerations are more relevant than the nuances of the laws in different states. This Note, therefore, does not analyze the subtle distinctions between the Rape Shield Laws of various states. For such a discussion, see generally Galvin, supra note 31. For an in-depth analysis of the relative strengths and weaknesses of Rape Shield Laws, see id. at 773-76 (discussing four basic models of Rape Shield Laws and differences between provisions of each model); David Haxton, Comment, Rape Shield Statutes: Constitutional Despite Unconstitutional Exclusions of Evidence, 1985 Wis. L. Rev. 1219, 1220 n.3, 1222-31 & nn.7-44 (1985) (arguing that there are four categories of Rape Shield Laws and discussing differences between categories).
45. Galvin, supra note 31, at 773. Evidence of the victim's prior sexual history is admissible in certain circumstances, however. First, most Rape Shield Laws specifically allow the admission of evidence of previous sexual conduct between the victim and the defendant. See, e.g., Mass. Gen. Laws Ann. ch. 233, § 21B (West 1986) ("Evidence of specific instances of a victim's sexual conduct . . . shall not be admissible except evidence of the victim's sexual conduct with the defendant . . . ."). At least one commentator has questioned the rationale of such provisions, arguing that they hinder the effective prosecution of husbands and boyfriends for rape and are based on sexist and outdated notions of female sexuality. See generally Garth E. Hire, Holding Husbands and Lovers Accountable for Rape: Eliminating the "Defendant" Exception of Rape Shield Laws, 5 S. Cal. Rev. L. & Women's Stud. 591 (1996) (claiming that "defendant" exception fails to protect about half of all women raped and arguing for its elimination). Second, evidence of the victim's prior sexual activity with people other than the defendant may be admitted in order to show who caused the "physical consequences" attributed to the rape, such as semen, disease, or pregnancy. Some statutes only allow the defendant to present such evidence in order to prove someone other than the defendant had sexual intercourse with the victim. See, e.g., Fed. R. Evid. 412(b)(1)(A) (admitting "evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence"). Other statutes allow either the defendant or the prosecution to introduce such evidence. See, e.g., Colo. Rev. Stat. § 18-3-407(1)(b) (1986) (admitting "[e]vidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease or any similar evidence of sexual intercourse offered for the purpose of showing that the act or acts charged were or were not committed by the defendant"). Third, many Rape Shield Laws explicitly provide that evidence that is constitutionally required to be admitted is admissible. See, e.g., N.H. R. Evid. 412 (stating that evidence of victim's prior sexual history is inadmissible "[e]xcept as constitutionally required"). Evidence of prior sexual history might be constitutionally required if, for example, it was also evidence of a motive for the victim to lie about being raped. See, e.g., Olden v. Kentucky, 488 U.S. 227, 233 (1988) (holding that Constitution required that evidence of rape victim's prior sexual history be admitted at trial because it was evidence of motive for victim to lie about being assaulted). Under these and other exceptions, judges retain some discretion to admit prior sexual history evidence. Most Rape Shield Laws specify strict procedures that must be followed by judges, however, before they admit any prior sexual history evidence. These procedures generally include in camera hearings, see, e.g., Mass. Gen. Laws Ann. ch. 233, § 21B (West 1986) (admitting evidence of prior sexual history "only after an in camera hearing on a written motion for admission of same and an offer of proof"), and a finding by the judge that the evidence is relevant, see, e.g., N.Y. Crim. Proc. Law § 60.42(5) (McKinney 1975) (admitting evidence of victim's prior sexual history if court determines evidence is "relevant and admissible in the interests of justice"), or that its probative value outweighs its prejudicial effect, see, e.g., Mass. Gen. Laws Ann. ch. 233, § 21B (West 1986) (stating that "weight and relevancy of . . . evidence [of victim's prior sexual history must be] sufficient to outweigh its prejudicial effect to the victim" to be admitted).
46. See, e.g., Lucado v. State, 389 A.2d 398, 403-07 (Md. Ct. Spec. App. 1978) (stating that intention of Maryland legislature in passing Rape Shield Law was to protect female victims of rape from inquiry into their "chastity" and that legislature did not have same concern with respect to male victims).
47. See, e.g., Colo. Rev. Stat. § 18-3-407 (1986 & Supp. 1996) (referring to "victim" and "defendant" without specifying gender); Mass. Gen. Laws Ann. ch. 233, § 21B (West 1986) (same); Mich. Comp. Laws Ann. § 750.520j (West 1991) (same); N.Y. Crim. Proc. Law § 60.42 (McKinney 1975) (referring to "victim" and "accused" without specifying their gender).
48. 458 A.2d 994 (Pa. Super. Ct. 1983).
49. See id. at 995 n.2.
50. See id. ("Because the Pennsylvania sexual offense provisions are clearly gender neutral, we conclude that any evidentiary exclusions established to aid victims of those crimes are equally applicable to both male and female victims.").
51. See, e.g., Kelly v. State, 586 N.E.2d 927, 929 (Ind. Ct. App. 1992) (applying state's Rape Shield Law to case of male same-sex rape); State v. Hackett, 365 N.W.2d 120, 127 (Mich. 1985) (same); State v. Rodgers, No. 01-C-01-9011-CR-00312, 1991 Tenn. Crim. App. LEXIS 648, at *9 (Aug. 16, 1991) (same); State v. Camara, 781 P.2d 483, 488-90 (Wash. 1989) (same).
52. 668 S.W.2d 123 (Mo. Ct. App. 1984).
53. Id. at 125 (citing Mo. Rev. Stat. § 491.015 (1978), amended by Mo. Ann. Stat. § 491.015 (West 1996) (expanding scope of Rape Shield Law to cover all sex offenses, including sodomy and deviate sexual assault)).
54. See id. (quoting Mo. Rev. Stat. § 566.010(1) (1978) (current version at Mo. Ann. Stat. § 566.010(4) (West Supp. 1997))).
55. See Mo. Ann. Stat. § 566.010(4) (West Supp. 1997).
56. See, e.g., Ga. Code Ann. § 16-6-1 (1996 & Supp. 1997) (defining rape in gender specific terms as "carnal knowledge of a female forcibly and against her will. Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ."); Idaho Code § 18-6101 (1997) (¥Rape is defined as the penetration, however slight, of the oral, anal or vaginal opening with the perpetrator's penis accomplished with a female . . . .").
57. See infra Parts I.B.1-4.
58. See Jon R. Waltz & Roger C. Park, Cases and Materials on Evidence 439 (8th ed. 1995) (noting that common law practice of allowing introduction of evidence of victim's character for chastity "deterred victims from pursuing well-founded complaints because of fear of abuse and degradation in the courtroom"); Ronald J. Berger et al., Rape-Law Reform: Its Nature, Origins, and Impact, in Searles & Berger, supra note 5, at 223, 227 (discussing alliance of women's groups and "law-and-order groups" that led to rape law reform); Galvin, supra note 31, at 767 (noting evidentiary reform efforts of feminist organizations and law enforcement agencies and relating their arguments that admission of chastity evidence deterred reporting and prosecution of rape).
59. See Jon R. Waltz & Roger C. Park, Cases and Materials on Evidence 439 (8th ed. 1995) (noting that common law practice of allowing introduction of evidence of victim's character for chastity "deterred victims from pursuing well-founded complaints because of fear of abuse and degradation in the courtroom"); Ronald J. Berger et al., Rape-Law Reform: Its Nature, Origins, and Impact, in Searles & Berger, supra note 5, at 223, 227 (discussing alliance of women's groups and "law-and-order groups" that led to rape law reform); Galvin, supra note 31, at 767 (noting evidentiary reform efforts of feminist organizations and law enforcement agencies and relating their arguments that admission of chastity evidence deterred reporting and prosecution of rape).
60. Fishman, supra note 10, at 716 (allowing rape defendants to humiliate and embarrass rape victims at trial "discouraged many victims from coming forward in the first place"); see Galvin, supra note 31, at 767 (¥[I]n-court disclosure of the most intimate details of the rape complainant's personal life acted as a significant deterrent to the reporting . . . of rape."). Fear of being humiliated at trial is still a major cause of nonreporting. See, e.g., Diana E.H. Russell, The Trauma of Rape: The Case of Ms. X, in Searles & Berger, supra note 5, at 9, 11 (discussing rape survivor's reasons for not reporting rape, including knowledge that if she went to court, she would have "to be in a roomful of people who knew what happened to [her, and that] made [her] sick").
61. See, e.g., Murthy, supra note 30, at 551 ("[One] purpose[ ] of rape shield statutes [is] to encourage rape victims to come forward. The statutes attempt to achieve this end by banning humiliating and intrusive questions about rape victims' sexuality."). But see Ellis, supra note 9, at 398 (agreeing that Rape Shield Laws were introduced to encourage reporting of rape by assuring women that their prior sexual history would not be divulged at trial, but arguing that this motivation for Rape Shield Laws is not justifiable).
62. See Bachman & Paternoster, supra note 35, at 565-66 (finding slight increase in reporting of rape after passage of Rape Shield Laws). See generally Cassia C. Spohn & Julie Horney, The Impact of Rape Law Reform on the Processing of Simple and Aggravated Rape Cases, 86 J. Crim. L. & Criminology 861 (1996) (discussing expected effect of Rape Shield Laws on reporting of rape, acknowledging more subtle changes that actually occurred, and analyzing data from Detroit to determine effect of Rape Shield Laws on processing particular types of rape). But see Hubert S. Feild & Leigh B. Bienen, Jurors and Rape: A Study in Psychology and Law 180-81 (1980) ("[N]o one has convincingly demonstrated that the new evidence statutes have increased reporting. . . . Is not the decision to report governed by factors which have nothing to do with the . . . evidence provision[s] in effect in the jurisdiction?").
63. See Bachman & Paternoster, supra note 35, at 565-66 (finding slight increase in reporting of rape after passage of Rape Shield Laws). See generally Cassia C. Spohn & Julie Horney, The Impact of Rape Law Reform on the Processing of Simple and Aggravated Rape Cases, 86 J. Crim. L. & Criminology 861 (1996) (discussing expected effect of Rape Shield Laws on reporting of rape, acknowledging more subtle changes that actually occurred, and analyzing data from Detroit to determine effect of Rape Shield Laws on processing particular types of rape). But see Hubert S. Feild & Leigh B. Bienen, Jurors and Rape: A Study in Psychology and Law 180-81 (1980) ("[N]o one has convincingly demonstrated that the new evidence statutes have increased reporting. . . . Is not the decision to report governed by factors which have nothing to do with the . . . evidence provision[s] in effect in the jurisdiction?").
64. People v. Yates, 637 N.Y.S.2d 625, 629 (Sup. Ct. 1995); see Groth & Burgess, supra note 7, at 808 (quoting male rape survivor as saying that "reporting puts your masculinity in jeopardy"); Pelka, supra note 5, at 254 (claiming male rapists capitalize on fact that "straight victims don't want to appear gay"); Telephone Interview with Bea Hanson, supra note 28 (noting that male victims who are gay fear that reporting rape will expose their homosexuality).
65. See Groth & Burgess, supra note 7, at 808 (finding that male victims do not report being attacked in part because they fear that no one will believe that they could not defend themselves); see also Pelka, supra note 5, at 252 (noting that one police officer to whom he reported his rape "obviously didn't believe [him]").
66. See Groth & Burgess, supra note 7, at 808 (finding that men do not report being assaulted in part because telling anyone is "embarrassing" and "distressing").
67. See Telephone Interview with Bea Hanson, supra note 28.
68. See id.
69. See Spohn & Homey, supra note 57, at 882 (analyzing data on rape cases in Detroit and finding that more "simple rape" cases have been held over for trial in Detroit since rape law reform). Professors Spohn and Horney explain this data by hypothesizing that either victims of rape now report such crimes more often to police, or police and prosecutors have begun to change their criteria when deciding which rape charges to pursue. They suggest that these findings may indicate that Rape Shield Laws have indirectly changed law enforcement attitudes toward rape, but the data on this issue are scarce. See id.
70. See Carl Weiss & David James Friar, Terror in the Prisons 52, 79 (1974) (relating accounts of prison rape victims who suffered retaliatory attacks after reporting rape or who were threatened with further attack if they reported rape).
71. See, e.g., Corley, supra note 6 (noting that prison same-sex rape victim Michael Blucker did not report being raped by fellow inmates for six months for fear of retaliation).
72. This is not to say that the issue of the victim's past sexual history does not arise in trials for prison rape. In fact, many such cases have struggled with the application of Rape Shield Laws to same-sex prison rape. Most often, the defense wishes to introduce evidence that the victim engaged in other, consensual homosexual activity while in prison. See, e.g., Dixon v. Jones, No. 88-0815-CV-W-5-P, 1990 U.S. Dist. LEXIS 883, at *17-*18 (W.D. Mo. Jan. 16, 1990) (discussing application of rape shield law to case of prison rape where defendant claimed victim consented); Kvasnikoff v. State, 674 P.2d 302, 303-05 (Alaska Ct. App. 1983) (same); Kelly v. State, 586 N.E.2d 927, 928-29 (Ind. Ct. App. 1992) (same); State v. Hackett, 365 N.W.2d 120, 126-27 (Mich. 1985) (same); Commonwealth v. Quartman, 458 A.2d 994, 995-98 (Pa. Super. Ct. 1983) (same); State v. Whaley, No. 03C01-9101-CR-00025, 1992 Tenn. Crim. App. LEXIS 607, at *14-*15 (July 21, 1992) (same); State v. Rodgers, No. 01-C-01-9011-CR-00312, 1991 Tenn. Crim. App. LEXIS 648, at *5-*10 (Aug. 16, 1991) (same).
73. See Fishman, supra note 10, at 715 & n.19, 718 (calling this assumption "[the] yes/yes inference").
74. See Galvin, supra note 31, at 798.
75. See Vivian Berger, Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom, 77 Colum. L. Rev. 1, 56 (1977) (arguing that women choose and reject partners based on "highly personal standards"); Fishman, supra note 10, at 741-42 (noting that idea that consent to sex with one man makes consent to sex with another man more likely has been recognized almost universally as fallacious); Galvin, supra note 31, at 767 & n.14 (citing additional sources that describe fallacy of this argument); see also Kvasnikoff, 674 P.2d at 306 (describing idea that women are more likely to consent to sex if they have had consensual sex in past as "more a creature of a one-time male fantasy of the 'girls men date and the girls men marry' than one of logical inference" (quoting People v. Blackburn, 128 Cal. Rptr. 864, 867 (Ct. App. 1976))).
76. But see supra text accompanying note 41 (noting that most Rape Shield Laws do admit evidence of complainant's prior sexual history with defendant if offered as evidence that victim consented). For an example, see Fed. R. Evid. 412(b)(1)(B) (admitting "evidence of specific instances of sexual behavior by the alleged victim with respect to the . . . accused . . . offered by the accused to prove consent"). Further, most Rape Shield Laws allow evidence of prior sexual activity to be admitted in order to show another possible source of the physical consequences of the alleged rape, such as injury, pregnancy, and semen. See Waltz & Park, supra note 54, at 439. The wording of such exceptions varies widely. See, e.g., supra note 41.
77. Courts have recognized this fact. See, e.g., Kvasnikoff, 674 P.2d at 306 ("A homosexual has no more or less free will than a heterosexual to engage in consensual sex with another individual.").
78. One could argue that protecting male victims of rape from the "yes/yes inference" is not a concern because men were never subject to such an inference. This is true, in part, because society encouraged men to have multiple sexual partners, while women were supposed to "save themselves" for marriage. See Galvin, supra note 31, at 783-84 (stating that "women who had engaged in sexual intercourse outside of marriage had violated societal norms and therefore possessed the character flaw of unchastity"). Given the feminization of men who engage in same-sex sexual activity, however, the "yes/yes inference" potentially could be implicated in cases of male same-sex rape. See infra text accompanying note 81. In addition, the stereotype of promiscuity associated with gay men may give rise to its own "yes/yes inference."
79. See, e.g., Galvin, supra note 31, at 787 (stating that some courts believed that unchastity was relevant to determination of woman's credibility). Under the laws of evidence, the credibility of witnesses is almost always relevant. See, e.g., Fed. R. Evid. 608(a) (allowing impeachment of witnesses through opinion or reputation evidence only on issue of their "character for truthfulness or untruthfulness").
80. See Galvin, supra note 31, at 787 n.116 ("'What destroys the standing of [females] in all the walks of life has no effect whatever on the standing for truth of [males].'" (quoting State v. Sibley, 33 S.W. 167, 171 (Mo. 1895))).
81. See id. at 787-88 (tracing perceived connection between female unchastity and veracity to "the powerful influence of Dean Wigmore"); see also Gary D. LaFree, Rape and Criminal Justice: The Social Construction of Sexual Assault 200 (1989) (quoting John Henry Wigmore, Evidence in Trials at Common Law 924a (Chadbourn rev. 1970)).
82. See id. at 787-88 (tracing perceived connection between female unchastity and veracity to "the powerful influence of Dean Wigmore"); see also Gary D. LaFree, Rape and Criminal Justice: The Social Construction of Sexual Assault 200 (1989) (quoting John Henry Wigmore, Evidence in Trials at Common Law 924a (Chadbourn rev. 1970)).
83. John Henry Wigmore, Evidence in Trials at Common Law 924a (Chadbourn rev. 1970).
84. See, e.g., Fishman, supra note 10, at 716 (finding that connection between unchastity and credibility was recognized by rape law reformers as "factually questionable and . . . politically unacceptable"); Galvin, supra note 31, at 799-800 (arguing that it is now widely recognized that chastity bears no relationship to credibility, and that fact that such evidence was only used against female rape complainants indicates it was based "on a sexist assumption that unchaste women will falsely charge rape").
85. See supra note 74 and accompanying text.
86. See, e.g., People v. Peters, 101 Cal. Rptr. 403, 409-10 (Ct. App. 1972) (rejecting defendant's argument that evidence of association with homosexuals would give credence to theory that witness was testifying out of homosexual jealousy).
87. See infra Part II.B.
88. See, e.g., Elisabeth Young-Bruehl, The Anatomy of Prejudices 36, 148-49 (1996) (linking homophobia to sexism expressly). Young-Bruehl argues convincingly that homophobia often encompasses many of the characteristics of sexism and states that homophobia by men toward gay men is often an expression of hatred of femininity. See id. Given this connection between prejudice toward women and gay men, it seems reasonable to believe that prejudices normally reserved for women are also likely to be directed at gay men.
89. 365 N.W.2d 120 (Mich. 1984).
90. Id. at 126.
91. See, e.g., Peters, 101 Cal. Rptr. at 409-10 (rejecting defendant's attempt to admit evidence in burglary case that witness was homosexual and thus his credibility was suspect); cf. Ohio v. Cruz, C.A. No. WD-86-72, 1987 Ohio App. LEXIS 8703, at *7-*10 (Sept. 18, 1987) (rejecting, in opposite-sex rape trial, defendant's argument that victims' homosexuality made them "abnormal" and thus likely to enjoy watching each other engage in sex with stranger and to lie about being raped).
92. See Fishman, supra note 10, at 716 (stating that Rape Shield Laws were created to mitigate fact that "admission of [evidence of a victim's prior sexual history] too often resulted in acquittals of men who should have been convicted"); Galvin, supra note 31, at 767 (stating that rape law reformers argued that allowing defendants to attack character of rape victims "accounted for the high rate of acquittal" of men accused of rape).
93. See LaFree, supra note 75, at 217-18 (finding that in study measuring effect of victim's behavior on outcome of rape trials, "[j]urors were less likely to believe in a defendant's guilt when the victim had reportedly engaged in sex outside of marriage . . . . In contrast, [presence of a] weapon, victim injury, number of charges[, and] eyewitnesses had [no] significant effect on verdicts"). One juror interviewed stated that hospital records do not "mean it was rape. Abrasion of the vagina still doesn't mean rape - she might want that force." Id. at 218; cf. Feild & Bienen, supra note 57, at 118 (agreeing that as "rape law . . . reformers have argued . . . sexual experience of the victim proved to have important effects on juror decision making" but finding that "effects of information on the victim's sexual experiences are more complex than some writers have thought [as jurors consider evidence of a victim's sexual experience in combination with other characteristics of the assault,] such as race of the defendant, race of the victim, and the type of rape committed").
94. See LaFree, supra note 75, at 207 (noting that rape prosecutions in which accused's defense was consent were more likely to involve allegations that victim engaged in "non-traditional behavior," including premarital sex and drinking or drug use, and were much less likely to end in guilty verdicts than were rape cases with different defense strategy). Not surprisingly, jurors with conservative ideas about appropriate gender roles appear particularly likely not to believe victims of rape who engage in nontraditional behavior. See id. at 224-25.
95. Cf. Denise Bricker, Fatal Defense: An Analysis of Battered Woman's Syndrome Expert Testimony for Gay Men and Lesbians Who Kill Abusive Partners, 58 Brooklyn L. Rev. 1379, 1400-01 (1993) (noting similarity of juror hostility toward women and hostility toward gay men and lesbians).
96. See Galvin, supra note 31, at 796 (concluding that "jurors, in effect, 'rewrit[e] the law of rape' when the accuser is deemed undeserving of its protection" (quoting Harry Kalven, Jr. & Hans Zeisel, The American Jury 251 (1966))); see also Feild & Bienen, supra note 57, at 142 (finding that in cases where jurors interpreted women victims as encouraging rape, defendants received lighter sentences).
97. See supra notes 58-62 and accompanying text.
98. See, e.g., Groth & Burgess, supra note 7, at 809 ("Since rape is commonly misconstrued to be a sexually motivated crime, it is generally assumed that . . . when it does occur [to men], it reflects a homosexual orientation on the part of the offender."); cf. Robert B. Mison, Note, Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation, 80 Calif. L. Rev. 133, 158 (1992) (arguing that "typical American juror" is product of "homophobic and heterocentric American society," and that this fact is exploited by murder defendants presenting "homosexual-advance" defenses).
99. See George Chauncey, Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940, at 65-66 (1994) (arguing that "gender behavior rather than homosexual behavior per se was the primary determinant of a man's classification").
100. See id. at 66.
101. See id. at 81 (claiming that "using a fairy not only could be construed and legitimized as a 'normal' sexual act but could actually provide some of the same enhancement of social status that mastering a woman did").
102. See id. at 60-61.
103. See id. at 70-71 (noting Kinsey's efforts to refute this idea).
104. Alfred C. Kinsey et al., Sexual Behavior in the Human Male (1948).
105. See id. at 615-16.
106. See id.
107. See Chauncey, supra note 92, at 12-13. Chauncey argues that although bisexuality is acknowledged, it "depends for its meaning on its intermediate position on the axis defined by those two poles [of homosexuality and heterosexuality]." Id. at 13.
108. See Young-Bruehl, supra note 81, at 138.
109. See D.J. West, Homophobia: Covert and Overt, in Male Victims of Sexual Assault 13, 17 (Gillian C. Mezey & Michael B. King eds., 1992) (noting that studies have found no connection between male homosexuality and child molestation).
110. See Donal EJ. MacNamara & Edward Sagarin, Sex, Crime, and the Law 128-36 (1977) (discussing selective prosecution, focus on "public" activity, and 1970s movement by gay activists to repeal anti-homosexual legislation).
111. See Developments in the Law - Sexual Orientation and the Law, 102 Harv. L. Rev. 1508, 1519 (1989) [hereinafter Developments] (stating that as of 1989, 24 states and the District of Columbia still had statutes that criminalized sodomy).
112. See Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 Wis. L. Rev. 187, 188-90 (1988) (discussing why "criminal law punishes homosexual conduct more severely than similar heterosexual behavior").
113. 478 U.S. 186 (1986).
114. See id. at 195 ("The right pressed upon us here has no . . . support in the text of the Constitution, and it does not qualify for recognition under the prevailing principles of construing the Fourteenth Amendment.").
115. See Bureau of Justice Statistics, U.S. Dep't of Justice, Sourcebook of Criminal Justice Statistics 1996, at tbl.2.119 (1996).
116. See MacNamara & Sagarin, supra note 103, at 136 (arguing that illegality of sodomy provides legal arguments to those trying to deny other rights to gay men and lesbians, such as participation in armed forces, government, and private employment); Law, supra note 105, at 190-93 (discussing consequences of criminalizing same-sex sexual activity); Developments, supra note 104, at 1521 ("[T]hese statutes are frequently invoked to justify other types of discrimination against lesbians and gay men on the ground that they are presumed to violate these statutes."); see also Romer v. Evans, 116 S. Ct. 1620, 1631 (1996) (Scalia, J., dissenting) (arguing that Bowers allowed criminalization of homosexual conduct and should have been dispositive in challenge to law denying antidiscrimination protection to people based on their sexual orientation). These statutes, obviously, also have a negative impact on lesbian women. That issue, however, is outside the scope of this Note.
117. See Mark Strasser, Fit To Be Tied: On Custody, Discretion, and Sexual Orientation, 46 Am. U. L. Rev. 841, 842-43 (1997) (discussing problems gay parents face in custody proceedings).
118. But see Mark Hansen, More Battles Ahead Over Gay Marriages: Opponents Seek To Overturn Hawaii Ruling With A Constitutional Amendment, A.B.A. J., Feb. 1997, at 24 (discussing recent Hawaii court decision that prohibition of same-sex marriage is unconstitutional).
119. See Law, supra note 105, at 192.
120. Some have noted, however, that sodomy statutes also have more benign, or even positive, uses. For example, prosecutors have used such statutes to prosecute the rape and sexual assault of male victims in states where rape statutes apply only to female victims. See Developments, supra note 104, at 1520 n.8. Such violent crimes could also be prosecuted, however, by rewriting all rape statutes in gender neutral language. Making rape statutes gender neutral, as many states have done, would allow the prosecution of violent sexual assaults on men, while eliminating any discrimination against gays and lesbians that results indirectly from sodomy statutes. See Jeanne C. Marsh et al., Rape and the Limits of Law Reform 76 (1982) (noting that rape of men was prosecuted under sodomy statute until Michigan's rape law was rewritten to be gender neutral); see also Galvin, supra note 31, at 768 (noting that "majority" of states have rewritten rape laws to be gender neutral). Sodomy statutes thus are unnecessary for the prosecution of violent sex crimes.
121. See, e.g., State v. Whaley, No. 03C01-9101-CR-00025,1992 Tenn. Crim. App. LEXIS 607, at *15 (July 21, 1992) (comparing same-sex and opposite-sex rape victims by stating that "[t]he fact that someone has consented to homosexual acts on a previous occasion is no more proof that he or she consented at the time of an alleged single sex rape than prior consensual heterosexual relations would be in the case of a male/female rape").
122. See supra Part H.A. (exploring how societal understanding of homosexuality has led to bias within criminal law and society in general).
123. See, e.g., People v. Murphy, 899 P.2d 294, 296 (Colo. Ct. App. 1994) (finding that evidence about same-sex rape victim's previous marriage and child was sexual orientation evidence), rev'd, 919 P.2d 191 (Colo. 1996).
124. See, e.g., Michael B. King, Male Sexual Assault in the Community, in Mezey & King, supra note 102, at 1, 3-5 (noting that 17 of 22 male sexual assaults in survey consisted of forced anal intercourse); see also Groth & Burgess, supra note 7, at 807 (finding that most common sexual attack of men in study was "sodomy").
125. See supra note 91 and accompanying text.
126. See, e.g., Groth & Burgess, supra note 7, at 807 (finding that three of six victims and eight of 16 offenders were involved exclusively in heterosexual consensual sexual relationships); Kaufman, supra note 12, at 223 ("Male victims of sex assault in our study seemed in general to be unaffiliated with the homosexual community.").
127. See Margaret T. Gordon & Stephanie Riger, The Female Fear: The Social Cost of Rape 44-46 (1989) (arguing that rape is violent, not sexual, crime); Groth & Burgess, supra note 7, at 808 (finding that "[a]ll assaults [of men by men] served as an expression of power and mastery on the part of the offender"). Some jurors do believe that "rape is a crime of violence." See LaFree, supra note 75, at 225-26. Even those jurors who believe that female opposite-sex rape is a violent crime, however, may not believe or understand that men can be raped, that a man who rapes a man need not be gay, and so on.
128. See Groth & Burgess, supra note 7, at 809 (finding that "[t]he gender of the victim did not appear to be of specific significance to half of the subjects" studied by researchers).
129. The fact that some commentators have called same-sex rape "homosexual rape" illustrates the difficulty of divorcing the violent crime of same-sex rape from a concept of sexual orientation and homosexuality. See, e.g., MacNamara & Sagarin, supra note 103, at 150 (speaking of male-male rape as "homosexual rape"); Galvin, supra note 31, at 768 n.18 (discussing protection which gender neutral terms such as "sexual assault" provide to victims of "homosexual assaults"). For a discussion of why the term "same-sex rape" is more appropriate, see supra note 7.
130. See, e.g., Mison, supra note 91, at 153-58 (discussing impact of homophobia and heterosexism on jurors' perceptions of defendant in murder cases where victim was gay).
131. See, e.g., Rick Moore, Justice Is Not Blind for Gays, San Diego Union-Trib., Jan. 10, 1989, at B7 (discussing cases in which jurors found defendants accused of murder not guilty, or guilty of crimes less serious than murder, when victims were gay).
132. Historically, some men who allowed themselves to be penetrated during intercourse thought of themselves as "acting as a woman" and believed that these actions threatened the perception of their masculinity. See Chauncey, supra note 92, at 80-81. In fact, effeminate men were at one time considered not men, or even women, but an indeterminate third sex. See id. at 122-23.
133. See Weiss & Friar, supra note 64, at 66-67.
134. See id. at 4.
135. See Elizabeth M. Iglesias, Rape, Race, and Representation: The Power of Discourse, Discourses of Power, and the Reconstruction of Heterosexuality, 49 Vand. L. Rev. 869, 905 n.85 (1996) ("'A boy represses those qualities he takes to be feminine inside himself, and rejects and devalues women and whatever he considers to be feminine in the social world.'" (quoting Nancy Chodorow, The Reproduction of Mothering: Psychoanalysis and the Sociology of Gender 181 (1976))).
136. See Elizabeth M. Iglesias, Rape, Race, and Representation: The Power of Discourse, Discourses of Power, and the Reconstruction of Heterosexuality, 49 Vand. L. Rev. 869, 905 n.85 (1996) ("'A boy represses those qualities he takes to be feminine inside himself, and rejects and devalues women and whatever he considers to be feminine in the social world.'" (quoting Nancy Chodorow, The Reproduction of Mothering: Psychoanalysis and the Sociology of Gender 181 (1976))).
137. See Young-Bruehl, supra note 81, at 148 ("Those psychologists who have focused their attention on male prejudice against male homosexuals are almost unanimous in seeing this prejudice as a particular sort of sexism.").
138. Id.
139. See, e.g., Elizabeth A. Reilly, The Rhetoric of Disrespect: Uncovering the Faulty Premises Infecting Reproductive Rights, 5 Am. U. J. Gender & L. 147, 198-99 (1996) ("Violence against women . . . is not as upsetting as homosexuality because it does not threaten authority, existing power relations, or gender roles.").
140. See Law, supra note 105, at 196.
141. See generally id.
142. Id. at 187.
143. See, e.g., Brownmiller, supra note 36, at 309 ("Women are trained to be rape victims.").
144. See, e.g., id. ("To simply learn the word 'rape' is to take instruction in the power relationship between males and females."); see also Gordon & Riger, supra note 120, at 47-56 (discussing historical and current societal beliefs about female sexuality and appropriate female social roles and arguing that such beliefs contribute to feelings of powerlessness and fear in women).
145. See LaFree, supra note 75, at 150-51 (noting that research indicates that women are more afraid of rape, and of being alone at night or in dangerous places, than are men); see also Pelka, supra note 5, at 253 ("While women tell me that the possibility of rape is never far from their minds, most men never give it a first, let alone a second, thought."). In institutional settings, on the other hand, men may be more fearful of sexual assault.
146. See Groth & Burgess, supra note 7, at 809 (finding that common belief that men cannot be raped is untrue). In fact, some people believe that no woman can be raped if she does not want to be. One juror told a researcher: "A judge . . . told me that a woman can run faster with her pants down than a man, and I believe that. . . . If you want to say rape, then she must be unconscious. She can scream and kick if she's awake and doesn't want it." LaFree, supra note 75, at 225. If some people believe that women can defend themselves from all sexual attacks, they are unlikely to believe that men cannot.
147. Pelka, supra note 5, at 255-56.
148. See, e.g., King, supra note 117, at 3 (noting that in British survey of male sexual assault survivors, many reported fearing that police and their friends would not believe them).
149. 499 N.E.2d 1229 (Mass. App. Ct. 1986).
150. Id. at 1231.
151. See, e.g., King, supra note 117, at 3 (discussing experience of heterosexual victim of same-sex rape whose "social life ended" because his friends believed perpetrator's claim that victim had tried to seduce him). Men in prison may also fear being viewed as "culpable in having attracted the assault." Michael B. King, Male Rape in Institutional Settings, in Mezey & King, supra note 102, at 67, 69; see also Weiss & Friar, supra note 64, at 74-75 (noting inmates' belief that "a real male should be able to defend his sexual zones from invasion").
152. No. 96-KA-0950, 1997 La. App. LEXIS 2106 (Aug. 20, 1997).
153. Id. at *4-*5.
154. In fact, some rapists attempt to have their male victims ejaculate by masturbating them during the rape. In these cases the male victim often cannot understand his physical reaction to the violent assault, further confusing his (not to mention police officers') understanding of whether he "wanted it" or not. See, e.g., Groth & Burgess, supra note 7, at 809 (noting that offenders get victim to ejaculate as "strategy" to confuse him, impair his credibility, and confirm offender's fantasy that victim "wanted" rape); King, supra note 117, at 5 (noting that victims who ejaculated during rape were confused by their physiological response and reported feelings of anger and embarrassment). Physical responses such as ejaculation or erection, however, are completely normal reactions to an assault. See New York City Gay and Lesbian Anti-Violence Project, Male Sexual Assault (1996) (on file with the New York University Law Review), available at Male Sexual Assault (visited Jan. 26, 1998) 〈http://www.avp.org/sa/men/male_sexual_assault_brochure.en.html〉.
155. In fact, some rapists attempt to have their male victims ejaculate by masturbating them during the rape. In these cases the male victim often cannot understand his physical reaction to the violent assault, further confusing his (not to mention police officers') understanding of whether he "wanted
156. See supra Part I.B.2.
157. Such evidence could be admitted under the "prior sexual history with the defendant" exception that is part of most Rape Shield Laws. See supra note 41. But see generally Hire, supra note 41 (arguing that defendant exception to Rape Shield Laws is not logically sound and that prior consensual sexual history between victim and defendant is irrelevant to whether there was consent on particular occasion).
158. State v. Whaley, No. 03C01-9101-CR-00025, 1992 Tenn. Crim. App. LEXIS 607, at *15 (July 21,1992); see also Galvin, supra note 31, at 799 (noting that "the mere fact that the complainant has previously engaged in consensual sexual activity affords no basis for inferring consent on a later occasion"); Note, If She Consented Once, She Consented Again - A Legal Fallacy in Forcible Rape Cases, 10 Val. U. L. Rev. 127, 137-49 (1976).
159. 150 No. 01-C-01-9011-CR-00312, 1991 Tenn. Crim. App. LEXIS 648 (Aug. 16, 1991).
160. Id. at *6.
161. See id.
162. Id. at *8.
163. See Tenn. R. Evid. 412(d) (describing procedure under Rape Shield Law for admitting evidence of victim's prior sexual history at trial, including filing written motion to introduce such evidence followed by in camera hearing at which both defendant and prosecution may present evidence).
164. See Rodgers, 1991 Term. Crim. App. LEXIS 648, at *7-*8.
165. See id.
166. The Rodgers court's alternative ground for admitting the prior sexual history evidence - impeachment of the victim - may have had more merit. See infra Part III.B.
167. See, e.g., Dixon v. Jones, No. 88-0815-CV-W-5-P, 1990 U.S. Dist. LEXIS 883, at *17-*18 (W.D. Mo. Jan. 16, 1990) (rejecting defendant's attempt to introduce evidence of victim's prior sexual history to show consent); Kvasnikoff v. State, 674 P.2d 302, 303-05 (Alaska Ct. App. 1983) (same); State v. Hackett, 365 N.W.2d 120, 126-27 (Mich. 1985) (same); Commonwealth v. Quartman, 458 A.2d 994, 998 (Pa. Super. Ct. 1983) (same); State v. Whaley, No. 03C01-9101-CR-00025, 1992 Tenn. Crim. App. LEXIS 607, at *14-*15 (July 21, 1992) (same).
168. 458 A.2d 994 (Pa. Super. Ct. 1983).
169. See id. at 998.
170. See id.
171. Id.
172. In a very few cases of female opposite-sex rape, courts have had to consider how to treat sexual orientation evidence under Rape Shield Laws. See, e.g., State v. Kemblowski, 559 N.E.2d 247, 250-51 (Ill. App. Ct. 1990) (finding reversal of rape conviction necessary because evidence introduced by prosecutor at trial that female victim was lesbian was improper prior sexual history evidence under Rape Shield Law).
173. See, e.g., supra note 158 and accompanying text.
174. It is unlikely that this evidence could be admitted under an exception. Exceptions usually include evidence of prior sexual conduct with the defendant or evidence about the origin of semen or physical injury that has been attributed to the rape. See supra note 41. Neither of these issues is implicated in testimony that a victim is, or is not, gay.
175. People v. Murphy, 919 P.2d 191, 195 (Colo. 1996) (emphasis added).
176. Id.
177. See Kemblowski, 559 N.E.2d at 250 (finding unpersuasive prosecutor's argument that sexual orientation evidence was evidence of victim's sexual "status," not victim's sexual activity).
178. 919 p.2d 191 (Colo. 1996).
179. See id. at 193.
180. 674 P.2d 302 (Alaska Ct. App. 1983).
181. Id. at 304.
182. Id. at 308 (Coats, J., dissenting).
183. See, e.g., Murphy, 919 P.2d at 193 (noting that defendant introduced expert testimony about possibility that men can marry and have children but still be gay), rev'd, 919 P.2d 191 (Colo. 1996).
184. Id. at 194-95.
185. See supra Part I.B.2; see also, e.g., People v. Sandoval, 552 N.E.2d 726, 737 (Ill. 1990) (noting that under Illinois's Rape Shield Statute, defendant cannot introduce evidence of victim's prior consensual participation in sexual act because "[w]hether the complainant had participated in this particular sexual practice 2 times or 20 times has no bearing . . . on whether a particular instance of sex was consented to").
186. U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .").
187. 488 U.S. 227 (1988).
188. See id. at 232-33.
189. See id.
190. This Note argues that such a question should not be allowed in the first place, however, as it is more prejudicial than probative at best and irrelevant at worst. See infra Part III.C. (arguing that prosecutor should not be permitted to ask victim whether he is gay in first instance).
191. 403 S.E.2d 677 (S.C. Ct. App. 1991).
192. See id. at 678.
193. See id. (finding no bar when "the State itself made the matter of the victim's sexual preference an issue in the case").
194. See id.
195. See, e.g., Commonwealth v. McGregor, 655 N.E.2d 1278, 1280 (Mass. App. Ct. 1995) (finding that exclusion of evidence that victim wanted to keep secret fact that he engaged in sex with men for drugs was reversible error because exclusion deprived defendant of ability to demonstrate victim's motive to lie about being raped).
196. No. 01-C-01-9011-CR-00312, 1991 Tenn. Crim. App. LEXIS 648 (Aug. 16, 1991).
197. See id. at *8-*9; see also supra text accompanying notes 151-57 (discussing consent issue in Rodgers).
198. Id. at *5-*6.
199. See id.
200. Id. at *9.
201. State v. Williams, 487 N.E.2d 560 (Ohio 1986), is also relevant on this point, although the case involved opposite-sex rape. In Williams, a female rape victim claimed that she was gay, and that as a result she would not have had sex willingly with any man. The Supreme Court of Ohio affirmed a lower court ruling that the defendant was entitled under the Sixth Amendment to challenge the victim's testimony on this point, both as impeachment evidence, and as evidence relevant to the issue of consent, which had been raised at the trial. See id. at 562-63.
202. See, e.g., Fed. R. Evid. 608(a) (admitting evidence of witness's character only as it relates to character for "truthfulness or untruthfulness").
203. Individuals may be bisexual or may have other reasons for not wanting to be pigeonholed by a label such as "gay" or "homosexual." See, e.g., Chi Chi Sileo, Studies Put Genetic Twist on Theories About Sex and Love, Insight on the News, July 3-10, 1995, at 36 (noting that "scientists are beginning to view human sexual orientation as 'fluid'" and "homosexuality [as] part of a continuum of sexual behavior").
204. See, e.g., State v. Lang, 403 S.E.2d 677, 678 (S.C. Ct. App. 1991) (holding that evidence of homosexuality was admissible for purpose of impeachment after victim testified to being heterosexual); Rodgers, 1991 Tenn. Crim. App. LEXIS 648, at *8-*9 (finding that defendant had to be given opportunity to rebut evidence of victim's heterosexuality).
205. See John Leland, Bisexuality Is the Wild Card of Our Erotic Life, Newsweek, July 17, 1995, at 44 (discussing bisexuality and observing that some people have sexual relationships with people of both sexes).
206. See supra Part III.B.
207. See supra Part I.B.
208. See supra Part II.B.
209. 389 A.2d 398 (Md. Ct. Spec. App. 1978).
210. See id. at 400.
211. See id.
212. id. at 407 (quoting Md. Ann. Code art. 27, § 461A (1996)).
213. But see Hansen, supra note 111 (noting recent rulings on same-sex marriage in Hawaii).
214. But see infra text accompanying note 213 (noting that expert testimony to contrary may rebut this implication).
215. Evidence that the female victim had a child out of wedlock, however, might be seen as evidence of promiscuity. Such evidence should not be introduced at trial due to the risk of jurors misusing that information to imply consent in the current case. On the other hand, evidence that the victim is currently married or has children can prejudice a defendant's case by increasing juror sympathy for the victim. See, e.g., LaFree, supra note 75, at 200-28 (discussing evidence that victims' traditional behavior, such as marriage, made jurors more likely to convict for rape).
216. 919 p.2d 191 (Colo. 1996).
217. See id. at 193.
218. See People v. Murphy, 899 P.2d 294, 296 (Colo. Ct. App. 1994), rev'd, 919 P.2d 191 (Colo. 1996).
219. Id.
220. See id.
221. See Murphy, 919 P.2d at 195 ("Evidence of past sexual conduct is closely related to evidence of sexual orientation.").
222. See id. at 196.
223. See id. at 196-97.
224. Id. at 197.
225. See id. at 193 (stating that defendant Murphy testified that he and victim discussed Murphy's "interest in 'rough sex'").
226. For example, a local newspaper discussing the Murphy case described the victim as "a husband and father." Denver Digest, Denv. Post, June 11, 1996, at 3B.